Narinder Kumar Dhingra and 3 others v. Secunderabad Cantonment Board

Counsel for the petitioners: Mr.Peri Prabhakar Counsel for the respondent: Mr.YV.Ravi Prasad The Court made the following : Order: This Writ Petition is filed for a Mandamus to declare the action of the respondent in sealing the petitioners’ premises vide letter No.SCB/EB/OP/Sy.No.59/1/2/abutting RR Main Rd/Kakaguda V/1511, dated 07-07-2012, as illegal and arbitrary. I have heard Mr.Peri Prabhakar, learned Counsel for the petitioners, and Mr.Y.V.Ravi Prasad, learned Counsel for the respondent. The petitioners have obtained permission for construction of a building with cellar, ground, first and second floors with a total FSI of 4500.98 square feet. Upon inspection, the Chief Executive Officer of the respondent had issued preliminary notice petitioners wherein it was pointed out that the petitioners have been carrying on unauthorized construction. He has, therefore, called upon the petitioners to stop the construction within 48 hours from the date of receipt of the said notice and to showcause within three days as to why action should not be taken against them under the provisions of the Cantonment Act, 2006 (for short ‘the Act’).

Petitioner No.1 filed his reply on 08-09-2010 stating that the plot, over which construction permission has been granted, is very small and that he has taken care to construct as per the specifications. He has, accordingly, requested the respondent to allow him to build an additional floor to compensate for the loss suffered on account of road widening. Thereafter, the Chief Executive Officer has issued notice, dated 19-01-2011, under Section 248 (1) of the Act wherein he has directed the petitioners to stop the erection/re-erection of the building and to remove the unauthorized structure shown in Column 4 of the Schedule in the said notice. As the petitioners failed to comply with the same, the respondent has issued the impugned Letter sealing the said building the purpose of demolition of the unauthorized construction. It is the pleaded case of the petitioners that against the notice issued under Section 248 (1) of the Act, they have filed an appeal before the appellate authority under Section 340 of the Act on 26-03-2011 and that the said appeal along with the stay application is pending.

The grievance of the petitioners is that while the said appeal is pending and no order has been passed on the stay application, the respondent has issued the impugned Letter sealing the subject premises. At the hearing, the learned Counsel for the petitioners submitted that even though the petitioners have filed a stay application in the appeal, the same has not been disposed of by the appellate authority. A perusal of the prayer in the Writ Petition would show that the petitioners have not sought for any direction to the appellate authority for disposal of either the stay application or the appeal. They have merely questioned Letter, dated 07-07-2012, sealing the subject premises. Under Section 249 of the Act, at any time before or after making an Order under Section 248 of the Act either for demolition or for stoppage of erection of any building or execution of any work, the Chief Executive Officer is empowered to pass an order directing sealing of the building.

Thus, the power to seal has flown from Notice, 03-09-2010, issued by the Chief Executive Officer. The petitioner has filed an appeal feeling aggrieved by the said Notice. Unless the appellate authority passes an order granting suspension of action exercising its power under Section 342 of the Act, the Chief Executive Officer is entitled to pass the order of sealing. Therefore, in the absence of any Order of suspension passed by the appellate authority, the impugned Letter, dated 07-07- 2012, issued by the Chief Executive Officer sealing the subject premises cannot be found fault with. In the premises as above, I do not find any merit in this Writ Petition and the same is, accordingly, dismissed. This Order, however, does not preclude the petitioners from pursuing the pending appeal and the stay application filed therein. As a sequel, interim Order, dated 18-07-2012, is vacated and WVMP.No.3779 2012 WPMP.Nos.27841, 27842 & 27843 of 2012 are disposed of. 16th November, 2012 _________________________ (C.V.Nagarjuna Reddy, J)